Essex Sav Bank v. Meriden Fire Ins. Co.

• Decision Date: 20 June 1889
• Citation: 57 Conn. 335,18 A. 324
• Parties: ESSEX SAV BANK v. MERIDEN FIRE INS. CO.
• Court: Connecticut Supreme Court

18 A. 324

57 Conn. 335

ESSEX SAV BANK

v. MERIDEN FIRE INS. CO.

Supreme Court of Errors of Connecticut.

June 20, 1889.

For majority opinion, see 17 Atl. Rep. 930.

CARPENTER, J., (dissenting.)

I cannot concur. The insured paid the premium on his policy, and the defendant received the full benefit of the contract. In the absence of fraud by the insured, the equities are wholly with him; and afterwards, until the fire, he had an insurable interest in the property covered by the policy. It is immaterial that, after the loss, Stannard, the holder of the policy, assigned his claim to the plaintiff. The plaintiff, by that assignment, which was bona fide and for a valuable consideration, took the claim with all the equities and rights, and subject to all the defenses, which attached to it in the hands of the original holder.

The main question is, had Stannard an insurable interest in the property? The policy covers both real and personal property. It was issued by a stock, and not a mutual, corporation; therefore, those whose property it insures do not become members of the corporation, or interested in it, or in the pecuniary responsibility or condition of others who have property insured by it. Neither the form nor the condition of its policies requires an applicant for insurance to state the particulars of his title, or the incumbrances upon it, and the law does not require it unless called for by the terms of the policy, or of a written application, which in this case did not exist. The property insured was properly described by Stannard in his verbal application as his. So are the authorities. If the insured has only an equitable interest in the property under a contract for its purchase, even though the time for payment by him has expired, he still has an insurable interest, as was recently held by the supreme court of Maine in Gilman v. Insurance Co., 17 Atl. Rep. 544, (81 Me. 488;) and that decision, I think, is in accord with the general current of modern authorities. That a mortgagor may insure his mortgaged estate in such a corporation as the defendant, and in his application call the property his, without any statement of, or reference to, the incumbrance, unless called for by the terms of the policy or of the application, seems to be conceded. Therefore in this case the fact that the real estate was mortgaged when the policy was issued, and when the loss took place, is entirely immaterial, provided the right to redeem existed at the time of the loss. It is true that foreclosure proceedings had been instituted, a judgment obtained, and the time fixed for redemption had expired, before the property was destroyed; but the mortgagee had, by a valid contract, extended the limitation, and the extended period had not expired. The right of redemption by virtue of the contract for extension continued an existing equity, enforceable against the mortgagee, and therefore the right to redeem was in as full force as if the limitation fixed by the court...